Professor Mitchell’s characteristically thoughtful and incisive comment makes many important points.1 He is right in saying that Atkins v Virginia2 and Thompson v Oklahoma3 fit the modernization model better than Roper v Simmons4 or Kennedy v Louisiana.5
I also agree with Professor Mitchell that a modernization approach
gives political actors an incentive to behave strategically in (among
others) the way he suggests-to try artificially to create or resist a
“trend.” And it is hard to argue with his point that the Court’s
initial treatment of the so-called partial birth abortion issue, in Stenberg v Carhart,6
did not seem to reflect sensitivity to popular opinion. More generally,
the Court certainly has not been consistent in applying a modernization
approach, even in the areas I mention. Modernization remains mostly an
unselfconscious approach, I believe, and so it is not surprising that
there are many cases that cannot be squared with it.

Professor Mitchell’s main argument, though, is that in many of its
capital punishment and substantive due process decisions, the Court is
not responding to trends in public opinion but is instead just
indulging its own ideological preferences or policy views. This
argument, I think, raises some complicated issues. It may be worth
distinguishing two questions. The first is: to what extent is the Court
ruling according to the law, as opposed to ruling simply according to
the justices’ views? In controversial cases, that will often be quite a
difficult question to answer, for both empirical and conceptual
reasons. The second question is: to whatever extent the justices are
ruling according to the law (and not their policy views), where are
they getting the law from? Are they getting it from the Framers’
understandings, or precedent, or tradition, or something else?

September 24, 2009

The plays of William Shakespeare hardly ignore the topic of law. Yet most of the time when the legal lens gets pointed at the works of the Bard, they focus on the more explicitly judicial pieces, such as The Merchant of Venice or Measure for Measure. Working off of Chicago's 2009 Law and Shakespeare conference, however, Professor Richard McAdams presented a new paper at the tail end of the season's WIP talks on why Othello has far more to say about law and legal concepts that perhaps previously recognized. Showing both the benefits and shortcomings of resorting to the legal process, Shakespeare presents a nuanced and ambivalent perspective on law's overall utility.

The play is book-ended by two opportunities to use the legal process to avert an injustice. At the start of the play, Othello stands accused by Brabantio of taking his daughter Desdemona by force or fraud. Iago is the mastermind behind this misconception, stoking mistrust between the two and seeking to provoke street violence. However, at the critical moment Brabantio decides to divert the matter to a legal proceeding, which allows (through Othello and Desdemona's testimony) for Othello's exoneration.

By contrast, the play concludes with Othello serving as judge, jury, and executioner after accusing Desdemona of adultery with Cassio (again, a mistake fostered by Iago). In contrast the first Act, where Othello is vindicated by virtue of procedural rights, he flatly refuses to grant Desdemona any, including a rejection of her plea to call Cassio as a witness. The tragedy of Desdemona's death, after all, could have been averted the same way that Othello was freed -- through exculpatory witness testimony. Yet Othello, by choosing the path of private vengeance rather than public law, sowed his own bitter harvest, wrongfully killing his wife and love.

So at this level, Othello takes a significantly more positive view of law than many other Shakespearean works. Yet, in another sense, law is actually a dramatic failure in Othello--it provides virtually no recourse against the generally recognized true villain: Iago. Not only that, but this failing is one that drives several significant plot choices Shakespeare makes that cast light on otherwise seemingly odd authorial decisions.

September 19, 2009

Late last night, the Antitrust Division filed its
statement in the pending Google Book Search case. Once it became clear that DOJ
would participate in the case, everyone understood that the filing would
receive a great deal of attention. Filing at 10pm on a Friday—and a Jewish
holiday to boot—sounds like DOJ was trying to hide the filing, but I suspect the
timing reflects the reality of the real complexities of the case. DOJ’s bottom line
is that the proposed settlement agreement should be rejected “in its current
form” with the parties encouraged to modify it to comply with “Rule 23 and the
copyright and antitrust laws.” (Early commentary on the DOJ filing is available by
Danny Sullivan (here)
and James Grimmelmann (here).)

September 09, 2009

Amazon and its Kindle made the news again, this time because
some users were furious that they did not get more help when their e-book units
were stolen. For those who do not keep up with this technology, a
Kindle's owner can buy a book or other content and have it downloaded to the unit
by way of a wireless phone-like connection. Thus, each unit is identifiable to
Amazon, and the firm could at least refuse to sell content to a wrongful owner
of a Kindle. The Kindle would then be of little value to the user because one could read only previously, and rightfully, downloaded material. If my cell phone is stolen, the carrier is happy to turn off the
phone but not to disable that unit if a new SIM card is installed, but that is
because it does not expect the new “owner” to pay the bills. Amazon is accused
of seeking to gain from sales of content to the new owner. Similar policies are
apparently deployed by Sirius radio and by AT&T with regard to its iPhones.

Amazon says that it will help locate the missing Kindle only
if it is contacted by a police officer “bearing a subpoena.” Why would this be?
Would we not pay more for devices that could easily be disabled if lost or
stolen, for then they would be stolen less often and of greater value to us.

I think Amazon has unstated reasons for its policy. The firm
does not wish to be in the middle of squabbles about ownership. I might have
sold you my Kindle, and then found your payment dishonored. A couple might
split up and dispute ownership of their beloved Kindle. In general, firms do
not want to be in the business of adjudicating of property rights unless they
can profit from it. The price of the disabling function might be too high,
because the process will be overloaded with disputes rather than plain thefts.
Or at least this is a plausible explanation; I note that cellphone carriers in
other countries occasionally have different policies.

There are other areas of law and business where we find
similar phenomena. One of the most interesting examples is where morals are
supposed to enter business calculations. Consider the situation where a kosher
caterer fails to perform as promised, and essentially misappropriates a substantial
deposit paid by X. X can take the caterer to court, but this is an expensive
process. Instead, X appeals to the certifying authority and says, essentially, “you
should deny certification to this caterer because it is a wrongdoer, and “kosher”
should mean more than the technical requirements of ritual slaughter and so
forth.” The certifier will normally refuse to be involved. I had reason to
inquire about this recently and learned that some very strict certifiers would
refuse, for instance, to certify a candy bar that had a picture of a naked
person on it. The certifier finds the immodest and “wrongful” picture
disqualifying even though the objection is not about the ingredients in the
food. The difference is that the nudity is easily and objectively verifiable,
and of course offensive to the certifier. On the other hand, the
misappropriated money is disputed, and the certifier cannot easily determine
the facts; it simply does not want to be in the business of adjudication.

September 04, 2009

An abused child is picked up by social service workers after years of living on the street. The officers who see her remark how, despite her age, she behaves like an "adult". Another child commits a brutal murder. Politicians take to the mics and declare their support for "adult time for adult crime". Meanwhile, a twenty year old college student seems particularly bubbly and effervescent in class, leading her friends to remark on how childish she seems. These instincts reveal something fundamental but often forgotten about how we view children and childhood. Childhood isn't a static category applicable to anyone within the ages of 0 to 18. Rather, it is a contingent characterization dependent on social expectations and how individuals match them.

Yet often times, law, and indeed, much child development research, seems to take as a presumption that childhood can be isolated as a stable subject. When determining what rights and obligations to give and demand of minors, the law often makes assertions such as "Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment" (Parham v. J.R. 442 U.S. 584, 603 (1979)). Not only is this probably a misstatement of even the dominant view of adolescent decision making capabilities, but it also takes as an unstated assumption that the decision making abilities of children are something static, unconnected with the legal and social environment that they are raised in.

It is this mistake that Emily Buss looks to tease out the implications of in her current work, "What the Law Should (and Should Not) Learn from Child Development Research". At times, the law simply seems to ignore child development research. At other times, it uses it, but in a very prescriptive way that does not contemplate that child capabilities might shift depending on legal and social contexts. But occasionally, the law does seem to take notice of how its own messages and prescriptions do not just manage but also create the developmental capacities of the children it watches over.